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Human Rights Day: Never too Young to Change the World!

Every December 10th, the world marks Human rights Day. On this day in 1948, the Universal Declaration of Human Rights. On this Human Rights Day, we celebrate young people standing up for human rights under the theme Youth Standing up for Human Rights.

Contra Nocendi has firmly believes that youth participation is essential to achieve sustainable development for all and that the youth can play a crucial role in positive change. We see this everyday from young people seeking to engage in supporting our work to young people taking a stand to promote the rights of others.

The theme for this year takes on great significance for Contra Nocendi. One of the focuses this year is empowering youth to better know and claim their rights. Contra Nocendi has been planning for some time to expand its programming on the rights of the child to promote rights awareness. We firmly believe that human rights, especially in terms of the practical exercise of human rights, are best protected when the rights holders are aware and exercising their rights. We also see a great deal of importance in engaging young people in rights awareness programming as fundamental to expanding human rights protections and their practical exercise. We believe that young people who grow up fully aware of their rights are better prepared to be active exercisers of their rights and more empowered advocates for human rights for all people. In 2020, Contra Nocendi will be working with partners on the ground to provide human rights education programming in Cameroon in order to empower the next generation of human rights advocates.

The rights of the child and the positive promotion of human rights education for the next generation are extremely important to Contra Nocendi and we look forward to providing these programmes and learning from the next generation of human rights advocates.

Concerns about the access to justice for children in Cameroon

A recent case in front of the Committee of Experts on the Rights and Welfare of the Child (The Committee) raise serious questions about access to justice for children in Cameroon. In The Institute for Human Right and Development in Africa and Finder Group Initiative on behalf of TFA (a minor) v Camerooni the complainant, a child, was raped on several occasions. After reporting the crime and even identifying the perpetrator, which according to the complainant was a prominent member of the community, the case was dismissed in first instance. Her attempt to appeal was then made impossible due to a failure to provide her with the court records, effectively denying her access to justice. The complainant had since continuously tried to obtain the court records without success for two years before turning to the Committee.

The Committee underlined that while the rule of exhaustion of local remedies exists to allow states to address violations first, action may not be unduly prolonged.ii The Committee argued that this exception to the rule of exhaustion is especially important when it comes to human rights violations involving children, ‘more than any other group of human beings’.iii The Committee repeatedly held that the human rights obligation of states is that of result, not merely diligence, and that justice for children cannot wait as ‘time matters most when it comes to protection of children’s rights’.iv The fact that the complainants case was now under appeal in Cameroon was dismissed as to little too late and deemed unduly prolonged as well.v

Another recent case against Cameroon raised similar concerns. In the case of Open Society Justice Initiative v Cameroon examined by the African Commission of Human and People’s Rights (the Commission), the complainant was left without remedy due to administrative silence in first instance.vi By failing to act on the complainants application for a broadcasting license, he was effectively stopped both from broadcasting and from appealing to an administrative court. There is no legal right under this area of Cameroonian law to remedy administrative silence, which is why the complainant attempted to use the civil courts instead. This also proved unsuccessful when the case was dropped after first having the proceedings delayed nineteen times due to a failure to appear by Government representatives. The civil court dropped the case with the motivation that it had no jurisdiction and the case should instead be tried by an administrative court.vii Since this had already proved impossible, the complainant was left without any viable legal remedy.

The formal right to appeal is recognized in Cameroonian lawviii but the legal system has repeatedly failed as practical path for justice. The Commission as well as the Committee underlines that regardless of formal ways to appeal, a remedy must be de facto available. When it is not, the complainant cannot reasonably be asked to exhaust all domestic remedies before the case can be examined by the Commission or the Committee.ix

The circumstances of these cases raise serious concerns about systematic issues with access to justice in Cameroon. Inaction from the state effectively left both complainants without legal remedy and by extension violated the right to be heard under Article 7 of the African Charter on Human and Peoples’ Rights. Contra Nocendi International and Contra Nocendi Cameroon expresses concern about the independence of the judiciary and urge the authorities of Cameroon to ensure that the justice system is resistant to political influence.

The right to be heard is an essential right of the child, particularly so when in the justice system, both when accused of a crime and as a victim of crime.x Contra Nocendi International and Contra Nocendi Cameroon calls on the authorities of Cameroon to take all necessary steps to ensure access to justice for all children, not only in theory but in practice. We urge the authorities of Cameroon to ensure not only the right of the child to be heard but also the right to be heard within reasonable time. As highlighted by the Committee, children more than any other group of human beings, cannot wait.

i African Committee of Experts on the Rights and Welfare of the Child (ACERWC), Decision on the Communication submitted by the Institute for Human Right and Development in Africa and Finders Group Initiative on behalf of TFA (a minor) against the Government of the Republic of Cameroon, Communication no 006/Com/002/2015, Decision no 001/2018, May 2018, available at https://acerwc.africa/wp-content/uploads/2018/13/Cameron%20Rape%20Case.pdf [accessed 21 November 2019] ii TFA v. Cameroon, para 52 iii Ibid. para 29 iv Ibid. para 56 v Ibid. vi African Commission on Human and Peoples’ Rights, Communication 290/2004 – Open Society Justice Initiative (on behalf of Pius Njawe Noumeni v. the Republic of Cameroon. March 2019, available at https://www.achpr.org/sessions/descions?id=209 [accessed 21 November 2019] vii Open Society v. Cameroon, para 65, 67 viii TFA v. Cameroon, para 32 ix Open Society v. Cameroon, para 85-86, and TFA v. Cameroon para 30-31 x United Nations Convention on the Rights if the Child, 1989, article 12

Contra Nocendi marks World Children’s Day

As Contra Nocendi International and Contra Nocendi Cameroon mark World Children’s Day and celebrate the 30th anniversary of the Convention on the Rights of the Child, we are deeply concerned about the right to access to justice for children. Our work in Cameroon has brought to light examples of how children are denied their right to counsel, right to a fair trial and their right to not be arbitrarily detained.

 

The issue of access to justice for children in Cameroon has been recently highlighted before the African Committee of Experts on the Rights and Welfare of the Child. In the recent case of TFA v Cameroon, the Committee underlined that while the rule of exhaustion of local remedies, which is required to seek redress before a regional human rights body in Africa, exists in order to allow for states to address violations first, action may not be unduly prolonged. The Committee argued that this exception to the rule of exhaustion is especially important when it comes to human rights violations involving children, “more than any other group of human beings”.  We agree with the Committee and will be shortly be releasing more information regarding access to justice for children in Cameroon.

 

Contra Nocendi International and Contra Nocendi Cameroon have been providing legal aid to a 16 year old in the Southwest region of Cameroon who was arrested two years ago without charge. Our client suffered through a similar issue of prolonged administrative silence that has forced our client to spend his 15th and 16th birthdays behind bars without being formally charged and despite a petition for writ of habeas corpus being filed months ago. In the coming days, Contra Nocendi Cameroon and Contra Nocendi International will be releasing more information about our client as part of our efforts to secure his release from arbitrary and unlawful pre-trial detention.

 

As we mark this World Children’s Day, we urge everyone to make the issue of access to justice for children in Cameroon a dire issue. Help us make sure more children are not denied their liberty and due process.

Contra Nocendi views on recent commission of inquiry report on Burundi

 

 

Introduction

The latest report of the UN Commission of Inquiry on Burundi, released on September 4th 2019, denounces a situation of increased political violence in the country since the 2018 referendum which allowed President Pierre Nkurunziza to run again for office and extended the presidential mandate.[i] Severe human rights violations have occurred in the country since 2015, when protests started as a reaction to Nkurunziza’s decision to run for a third term in office. Still, the current frequency of abuses appears to be the highest in four years and it is likely to increase as the 2020 elections approach.

 

Most of the human rights violations which are reportedly taking place in the country are essentially political in nature and occur in a climate complete impunity. The rights which have predominantly been affected by the violence and disregard for the human rights norms have been the right to life, the right to liberty and security of person, the right not to be subjected to torture and inhumane or degrading treatment. Episodes of sexual violence have also been denounced, and the premises for the realization of fundamental rights such as freedom of speech and association have been severely undermined.

 

The victims of the violations are often members of the opposition of individuals accused to be. In particular, members of the CNL (Congrès National pour la Liberté), have been heavily targeted since the registration of the party in February 2019. Depriving individuals of their liberty or committing acts of violence against them on the basis of their political ideas or affiliation to a political parties are not only violations of the principle of non-discrimination, and can amount to human rights violations per sé, but also undermine the right to participate in the political process.

Still, human rights violations have also occurred against family members of real or alleged members of the opposition, and individuals accused of having voted ‘no’ at the 2018 Referendum. At the same time, human rights defenders remain major targets of violence.

 

Both the UN Commission of Inquiry and different international organizations have identified members of the Imbonerakure, the youth wing of the ruling CNDD-FDD party, the National Intelligence Services, and local government officials as the main perpetrators of the acts of violence. Fear and lack of trust in the notably dysfunctional judicial system lead victims to be reluctant to bring complaints, making achieving justice even more complicated.

 

Contra Nocendi International has been working to provide support for individuals deprived of their liberty through its treatment in detention monitoring work and access to counsel programming. However, the current situation in Burundi threatens the possibility of carrying out this type of activities which would highlight the lack of procedural guarantees of access to counsel for individuals in detention as well as the conditions in which individuals are detained.

 

Arrests and Detention in Burundi

In recent months many individuals have allegedly been arbitrarily arrested and detained in Burundi. In most cases the families of the victims have not been informed of the whereabouts of their relatives and the grounds on which such deprivations of liberty have occurred remain unclear. Members of the CNL have been arrested under the accusation of organizing illegal meetings, while it appears that others have been arrested either because accused of being part of the opposition or of having opposed the 2018 referendum. Testimonies suggest that the arrests have been carried out by the police, the National Intelligence Service, the Imbonerakure and administrative officials. After being arrested, individuals are often allegedly detained by the police od the National Intelligence Service either in official or unofficial places of detention.

 

Access to Counsel

In most cases of detention, one of the basic procedural guarantees for individuals deprived of their liberty, access to legal counsel, is not adhered to. The right to access to legal counsel is a fundamental human right and it constitutes a basic requirement to be fulfilled for the right to liberty and security of person of individuals deprived of their liberty to be fulfilled.

 

Article 14 of the International Covenant on Civil and Political Rights specifies that ‘in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (…) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing’.[ii] Similarly, Article 7 of the African Charter on Human and People’s Rights indicates that ‘every individual shall have the right to have his cause heard’[iii] and that this comprises ‘the right to defence, including the right to be defended by counsel of his choice’[iv]. The UN Human Rights Committee, a body of independent experts monitoring the implementation of the ICCPR, has indicated that the right to access to counsel requires that the individual is able to meet with a legal counsel in conditions that respect confidentiality and that counsel should be able to advice the individual without any interference or external pressure.[v] The Human Rights Committee has further specified that access to counsel is a requirement to be fulfilled for any detention to be legal and that, as a result, failure to ensure such guarantee can result in a violation of the right to liberty and security of person guaranteed by Article 9 ICCPR.[vi] Such right is also guaranteed by Article 6 of the African Charter on Human and Peoples Rights.

According to the testimonies provided by individuals arrested and detained and/or their families, the individuals deprived of their liberty not only are not granted access to counsel, but in most cases, they are not even informed of the criminal charges brought against them, or their detention is kept secret altogether. Still, even when official charges are raised, access to counsel is often denied or the work of counsel is obstructed by the authorities. Such acts constitute clear violations of the provisions described above and further contribute to undermining the right to a fair trial in a situation in which an independent judiciary is absent.

When an individual is detained by official authorities such as the state police or the National Intelligence Service, and he or she is denied access to counsel, the responsibility for such violation directly falls on the state as the obligation to respect such right, which means refraining from restricting its exercise, falls on all the branches of government and public authorities.

 

Treatment in Detention

A large number of individuals arrested and detained in Burundi has allegedly been subjected to physical and psychological violence while in detention including acts that may amount to torture. According to testimonies such acts have often occurred in unofficial detention facilities and have also taken the form of sexual violence. Allegations have been raised that in some instances such acts have led to the death of the victims.[vii]

 

Individuals deprived of their liberty, especially those arbitrarily deprived of their liberty, are particularly vulnerable to becoming victims of torture and other inhumane and degrading treatment. The Convention Against Torture guaranteeing the right not to be tortured, defines torture as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity[viii]. The right not to be tortured or subjected to inhumane or degrading treatment or punishment is further guaranteed by Article 7 ICCPR and Article 5 of the African Charter on Human and Peoples Right. Moreover, Article 10 ICCPR specifically focuses on the right of individuals deprived of their liberty by indicating that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’[ix]. The Robben Island Guidelines constitute another important instrument protecting the right not to be tortured or subjected to inhumane or degrading treatment of individuals deprived of their liberty by providing indications to African States on how to meet their international obligations under the instruments described above.[x]

 

According to reports and testimonies, individuals arrested and detained either by the police, the National Intelligence Service, the Imbonerakure or other administrative officials, have been subjected to acts of extreme physical violence such as beatings and sexual violence. Such acts have allegedly been carried out either as a form of punishment for being accused of having politically opposed the government, or as a way to extract confessions for the purpose of trials. The 2018 UN Commission of Inquiry Report has in fact denounced that judges often use ‘confessions made under torture as a basis for convicting defendants’.[xi] It emerges that these acts not only amount to a violation of the right to be treated with humanity and respect, but also of the right not to be subjected torture as defined in the Convention Against Torture.

As discussed above, when official authorities commit acts amounting to a human right violation, the state is directly responsible for violating such rights. Thus, in a situation in which the National Intelligence Service agents, the police, or other official authorities commit acts amounting to torture the state is to be considered responsible.

 

On the other hand, the Imbonerakure members, which are allegedly responsible for a large number of acts of violence amounting to torture, are not state officials. Nevertheless, it has been broadly reported that Imbonerakure members often acts under the instructions of state agents which exercise effective control on them.[xii] In these circumstances, the state is directly responsible for any act constituting a human right violation carried out by the members of the youth group. Still, even when the Imbonerakure is not acting under state agents’ control, there are grounds for the state to be considered responsible of violating the rights of the individuals by failing to ensure the right. In fact, under International Human Rights Law, and in particular the ICCPR, the state must not only refrain from violating the rights guaranteed through the actions of its agents but also take all the appropriate steps and measure to ensure that the right is not violated.[xiii] A failure to do so creates responsibility. In Burundi the Imbonerakure has been openly supported by the government and no significant action appears to have been taken to restraint its members from carrying out acts of violence despite the extremely high number of allegations. It thus appears that even in situations in which the state has not directly violated the right not to be tortured or subjected to inhumane or degrading treatment or punishment, it has nevertheless violated it by failing to take measures to ensure it. This is further suggested by the fact that no investigations appear to have been opened on cases of alleged torture carried out either by Imbonerakure members or state officials. The duty to investigate is one necessary measure which the state must take to ensure the rights.

 

Conclusion

Contra Nocendi International is extremely worried by the continuous human rights violations to which individuals deprived of their liberty are subjected. Individuals deprived of their liberty are often subjected to torture and other inhumane or degrading treatment while lacking access to basic procedural safeguards such as access to counsel. These constitute severe human rights violations which must stop and on which the government of Burundi must ensure that investigations are opened. The government further needs to provide remedies for the victims of human rights violations which is one of its duties under International Human Rights Law.

Still, the reports of the UN Commission of Inquiry on Burundi and the information received from our partners on the ground raise serious questions on the government of Burundi’s respect for its obligations under International Human Rights Law. The continuous perpetration of violations in a climate of impunity carries the potential of fuelling tensions ahead of next year’s elections and strains the possibility of a fair and impartial election.

 

 

 

 

[i] Human Right Council ‘Report of the Commission of Inquiry on Burundi’ (6 August 2019) UN Doc A/HRC/42/49.

[ii] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 14(3)(b).

[iii] African Charter on Human and Peoples' Rights (Banjul Charter) (adopted 27 June 1981, entered into force 21 October 1986) OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, art 7.

[iv] Ibid.

[v] UNHRC ‘General Comment 32 on article 14 of the International Covenant on Civil and Political Rights on the right to equality before courts and tribunals and to a fair trial’ (23 August 2007) U.N. Doc. CCPR/C/GC/32 (2007) para 70-71.

[vi] UNHRC ‘General Comment 35 (2014) on article 9 of the International Covenant on Civil and Political Rights, on the right to liberty and security of person’ (16 December 2014) UN Doc CCPR/C/GC/35.

[vii] BBC, ‘Burundi: Inside the Secret Killing House’. Available at: https://www.bbc.com/news/av/world-africa-46428073/burundi-inside-the-secret-killing-house

[viii] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) UNGA Res 39/46, art 1.

[ix] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 10.

[x] To learn more about the Robben Island Guidelines: https://www.contranocendi.org/index.php/en/news-press/217-the-importance-of-the-robben-island-guidelines

[xi] Human Right Council ‘Report of the Commission of Inquiry on Burundi’ (8 August 2018) UN Doc HRC A/HRC/39/63.

[xii] Human Right Council (n i).

[xiii] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 2.

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